A court has the discretionary power to decline to exercise its jurisdiction (by dismissing a case) so a proceeding can be moved to another court that may more conveniently hear a case under the doctrine of forum non conveniens. A motion for change of jurisdiction can be filed in any civil case, including family law.
However, not all cases brought in inconvenient forums will be dismissed. For example, a court will not grant a forum non conveniens dismissal if there is no other forum that could hear the case. Similarly, courts will not grant a forum non conveniens dismissal where the alternative forum's judicial system is grossly inadequate.
The Supreme Court considered forum non conveniens in Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981). In that case, the Court held that so long as there was a remedy available in the alternate forum, it did not matter if the remedy was clearly insufficient.
The Supreme Court has heard two cases on the issue of forum non conveniens in recent years. The first was Sinochem International Co. Ltd. v. Malaysia International Shipping Corp. (2007), in which it held that a federal court may hear and pass a ruling on a forum non conveniens claim even if that court does not necessarily have subject-matter jurisdiction or personal jurisdiction over the case. The Court held that while courts typically need to consider personal jurisdiction and subject-matter jurisdiction before hearing a case on the merits, this procedure does not necessarily apply when considering non-merits issues.
The second case was Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas (2013). Here, the Court clarified that when granting a forum non conveniens claim, the issuing court should use 28 U.S.C. 1404(a), which states, "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented."
2-Part Test
Courts typically use a 2-part test when deciding forum non conveniens. The first part is a balancing test of both private and public factors, and the second looks at what adequate alternative courts are available. Stangvik v. Shiley, Inc. (1991) 54 Cal.3d 744,751.
Private Factors include (1) ease of access to evidence, (2) interest of the two parties in their connections with the respective forums, (3) the plaintiff's chosen court would be burdensome to the defendant, (4) ease of obtaining witnesses, and (5) enforceability of judgment. Public Factors include (1) whether the trial would involve multiple sets of laws, thus potentially confusing a jury, (2) having juries who may have a connection to the case, (3) local interest in having local interests heard at home, and (4) having the trial in a place where state laws govern.
Under the adequate alternative inquiry test, (1) the person bringing the motion must offer an alternate court that is able to hear the case, and (2) the alternate court must have the ability to provide a remedy for the parties.
About the Author
Attorney Adina Rosenfeld is an attorney at Feinberg & Waller, APC in Calabasas, CA. She is experienced in a wide range of divorce and family law matters, including complex custody disputes and international family law matters such as the Hague Convention and international child abduction. She speaks fluent German, conversational Polish and Italian, and some Hebrew. Adina earned her juris doctorate from Loyola Law School of Los Angeles and is a member of the California Bar Association.